COMPREHENSIVE PROPOSAL FOR LIFTING THE BAN
ON GAY, LESBIAN AND BISEXUAL SERVICEMEMBERS
IN THE UNITED STATES MILITARY
PROPOSAL SUMMARY
1. No Discrimination Based Upon Status: The mere
acknowledgment of being a gay person should not be a basis
for precluding that individual from serving in the armed
forces, even when the person's gay status is known to
others in the military.
2. No Discrimination Based Upon Private, Consensual
Conduct: Private, consensual gay conduct should not be a
basis for discharge. It is disingenuous to allow people to
stay in the military if they "say" they are gay, but to
discharge them if they live out that fact in their private
lives.
3. No Prosecution of Private, Consensual Sodomy by Gay
or Straight Personnel: Article 125 of the Uniform Code of
Military Justice (UCMJ) prohibits sodomy (oral or anal sex)
between people of the same or opposite sex.
The military traditionally has not prosecuted private,
consensual sodomy between heterosexual adults under
Article 125. The same approach should be followed with
regard to gay personnel and the Military Prosecutor's
Manual should be amended to reflect this approach.
Articles 133 and 134 of the UCMJ should also be applied in
an evenhanded manner.
4. Apply Sexual Misconduct Regulations in an Even-
handed Manner: A strict code regulating sexual misconduct
should be developed and enforced across the board. All
inappropriate sexual conduct -- such as sexual harassment,
fraternization or sex in the barracks -- is detrimental to the
military mission, whether practiced by gay or straight
personnel.
5. Continue to Discourage Public Displays of Affection On
Base and/or in Uniform: Public displays of affection, on base
and/or in uniform, have long been prohibited by the
military, sometimes by tradition and custom and
sometimes by service policy or regulation. This prohibition
should continue, with discretion in application left to the
base commander as has traditionally been the case. A
special rule prohibiting public displays of affection by gay
personnel is unnecessary and should not be established.
6. Make "Whole" Any Service Person Discharged or
Disciplined for Gay Status or Private Gay Conduct During
the Clinton Administration: President Clinton stated that
such individuals would be "made whole." Reliance on such
a position led some persons to acknowledge their gay
status or to admit to private gay conduct. Such individuals,
as well as individuals currently in litigation, should be
reinstated to their positions with seniority and receive
backpay, if no aggravating circumstances existed in their
discharges.
7. Personnel Who Were Discharged, or Resigned in Lieu
of Separation (Without Aggravating Circumstances) Prior to
the Clinton Administration Should Have the Right to be
Reinstated: Compensation of these individuals for the
injury suffered should occur through the application of
maximum good-faith efforts to place these individuals in
desirable positions for which they are qualified.
8. Non-discrimination in the Application of Privacy
Rights: All military personnel have a legitimate right not to
be harassed or threatened with inappropriate sexual
conduct. Sexual harassment, including sexual
propositioning, should be severely restricted, whether
engaged in by gay or straight personnel. Discomfort in
living arrangements, while felt by some straight personnel,
is not a sufficient factor to prohibit an entire class of
individuals from serving in the military. Such discomfort
should be managed and mitigated by good military
leadership.
9. Base Commander Discretion Should Continue to be
Applied with Regard to First Amendment Rights: Gay
support groups may be permitted to organize in the
military to the extent that other support groups have been
permitted to organize, subject to the discretion of the base
commander. The courts have consistently allowed the
military to limit speech deemed detrimental to good order
and morale.
10. Provision of Benefits Should Follow Existing Federal
Agency Policies: No federal agency currently provides
benefits to partners of gay employees. No changes in
military benefits will occur upon the lifting of the ban.
Realistically, any benefit changes will occur only if such
changes are made for the federal workforce as a whole.
* * * *
Prepared by the Legal/Policy Department of the Campaign
for Military Service. 2707 Massachussetts Ave, NW
Washington, DC 20009. (202) 265-6666.